As I said in this piece in the Baltimore Sun, Maryland police officers are misusing that state’s wiretap law to deter anyone who would film them performing their duties. Maryland officers have asserted that any audio recording of a conversation, even in a public place, is a violation of the state’s wiretapping law and a felony punishable by five years in prison and a $10,000 fine. Officers made this claim to deter filming of an arrest at the Preakness, and when motorcyclist Anthony Graber videotaped his traffic stop.

As Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and Maryland rulings interpreting the scope of the law. Is it time for a revision of this law, or is it just the officers’ interpretation that is the problem? I discussed this on the Kojo Nnamdi Show with the prosecutor pressing charges against Anthony Graber, State’s Attorney Joseph Cassilly, and Graber’s lawyer, David Rocah of the Maryland ACLU.

If you ask some officers in Maryland, any recording of a conversation violates the wiretap statute. If you ask a judge, you will get an entirely different reading of the law. Even though Maryland’s wiretapping statute is considered a “unanimous consent” or “two-party consent” law, its language is different from other states put in the same category such as Massachusetts and Illinois. Where Massachusetts and Illinois have no protection for recordings of conversations outside of electronic means of communication, the first section of the Maryland wiretapping law restricts unlawful interceptions of “oral communications” to words spoken in a “private conversation.”

While the analysis for wire communications is made without regard to privacy, Maryland courts held in Fearnow v. C & P Telephone Co.that a “private conversation” is one where there is a “reasonable expectation of privacy.” Fourth Amendment jurisprudence provides plenty of guidance on where a “reasonable expectation of privacy” exists. Simply put, a traffic stop on an interstate is not a place where Anthony Graber or the officers who cited him have a reasonable expectation of privacy.

This conclusion is bolstered by the guidance given to the Montgomery County Police by the Maryland Attorney General in this 2000 advisory opinion on recording traffic stops. Since 1991, the wiretapping statute had an exemption for police dash cameras where officers could record interactions with motorists when they warned the citizen that the traffic stop would be recorded. The 2000 letter addresses the possibility that other people could show up after the receipt of consent from a motorist and potential “inadvertent interceptions.” The opinion concludes that there is little for officers to worry about, but the state legislature expanded the law enforcement exception in 2002 to address this concern anyway. In a footnote, the advisory opinion makes the point that, in any case, the motorists being pulled over have no reasonable expectation of privacy:

It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.” For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom. It is difficult to characterize such a conversation as “private.”

The Attorney General’s office provided further guidance on the issue in this letter to a state legislator in 2009, advising that surreptitious recording of a meeting of the Democratic Club would probably not be a violation of the Maryland wiretapping law because statements made in this setting lack a “reasonable expectation of privacy.”

So, under the interpretation of the law supporting Anthony Graber’s prosecution, dash camera footage of Anthony Graber’s traffic stop is not a violation of the law, but Graber’s helmet-mounted footage is. The law enforcement officer, a public official performing public duties, retains a “reasonable expectation of privacy” on the side of I-95, but Anthony Graber has none. This is an assertion made contrary to the interpretation of the courts of Maryland, the Maryland Attorney General, and common sense.

This injustice could be resolved in several ways. First, as Radley suggests, the Maryland Attorney General could issue an opinion clarifying the wiretapping law with regards to recording police activity. Advisory opinions are not generally given sua sponte, so a state legislator or other official would have to request the AG’s interpretation. Second, Anthony Graber’s case may provide a rebuttal to an expansive reading of the statute by Maryland law enforcement officers. Third, the legislature could step in to deter future abuse of the statute by expressly stating that public discussions are not “private conversations.”

I discussed this on the Kojo Nnamdi Show with David Rocah and Joseph Cassilly. Rocah wants to preserve the “two-party consent” statute. The legislature, in fact, can clarify the definition of “private conversations” without changing the consent requirement of the law with regard to electronic communications.

On the other hand, State’s Attorney Joseph Cassilly recalled occasions when citizens have come to his office with recordings of threats or extortion demands and he was required to tell them that under Maryland law (1) their recording was not admissible as evidence because it did not have the consent of the threatening or extorting party (though I see no reason that a letter with the same communication would be inadmissible); and (2) the victim of the threat or extortion committed a felony violation of the wiretapping law by making the recording in the first place. That may be the law, but it’s not justice.

In any case, the prosecution of Anthony Graber is an abuse of police power. If Maryland law enforcement officers continue to use the state’s wiretapping law to shield their activities from public view, the backlash may result in a revision of the law in its entirety.